On Monday, the Supreme Court agreed to hear challenges to the constitutionality of the Health Care Law. In an op-ed and a debate this past week, two HLS faculty members and a prominent alumnus shared their opinions on the mandate’s constitutionality.

Professor Einer Elhauge ’86, director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics, wrote “The Broccoli Test” (excerpted below), which appeared in the Nov. 16, 2011 print edition of The New York Times.

On Nov. 12, 2011, Professor Laurence Tribe ’66 participated in a debate on the law’s constitutionality with former Solicitor General Paul Clement ’92. The event, part of the Fourth Annual Rosenkranz Debate, was held during the Federalist Society’s 2011 National Lawyers Convention (Legal Times report excerpt and debate video below).

The New York Times

The Broccoli Test


Published: November 15, 2011

The new mandate to buy health insurance has now reached the Supreme Court, which agreed on Monday to judge its constitutionality. The crux of the constitutional complaint against the mandate is that Congress’s ability to regulate commerce has never been understood to give it the power to force Americans to buy insurance, or anything else.

But not only is there a precedent for this, there is also clear support for it in the Constitution. For decades, Americans have been subject to a mandate to buy a health insurance plan — Medicare. Check your paystub, and you will see where your contributions have been deducted, whether or not you wanted Medicare health insurance.

Many opponents dismiss this argument because Medicare (unlike the new mandate) requires the purchase of health insurance as a condition of entering into a voluntary commercial relationship, namely employment, which Congress can regulate under the commerce clause. Thus, they say, the Medicare requirement regulates a commercial activity, whereas the new mandate regulates inactivity. But is that a distinction of substance? After all, we don’t have much choice but to get a job if we want to eat. … Read the full article on NYTimes.com »

The Legal Times

Clement, Tribe Debate Obama’s Health Care Law

A pair of prominent appellate law specialists debated the legality of the Patient Protection and Affordable Care Act, President Barack Obama’s sweeping health care reform law, at the Federalist Society’s annual National Lawyers Convention Saturday.

At a panel discussion moderated by Georgetown University Law Center professor Nicholas Rosenkranz, Bancroft partner Paul Clement remarked on how the law’s individual mandate, which compels citizens to purchase health care insurance or pay a penalty, “creates commerce rather than regulate commerce,” and said the American people have a right to not participate in commerce. … Read full report in the Nov. 14, 2011 edition of The Legal Times »